Environmental Claims by States in Investment Treaty Arbitration

2020 ◽  
Vol 5 (1) ◽  
pp. 412-425
Author(s):  
Gaurav Sharma
Keyword(s):  
International Law ◽  
Paradigm Shift ◽  
Public Discourse ◽  
Critical Role ◽  
Case Law ◽  
New Era ◽  
Investment Treaty ◽  
Local Resources ◽  
Investment Treaty Arbitration

Recent years have witnessed a number of counterclaims by State parties in investment treaty arbitrations based on environmental concerns and the need to protect local resources and safeguard the associated human rights of local communities. This article charts the development of the case law in this context, starting with the Urbaser v. Argentina award of December 2016, before examining its impact on the cases that followed in its wake, notably including the respective 2017 and 2018 awards in Burlington v. Ecuador and Aven v. Costa Rica. It concludes by considering whether these recent cases mark the beginning of a new era of international law claims which finds a parallel in the broader paradigm shift in public discourse on the critical role of all stakeholders in the conservation of the environment, and which may one day result in investors facing standalone claims as the respondent in future investment treaty claims brought by States.

Part I Investment Treaties and the Settlement of Investment Disputes: The Framework, 4 The Role of Precedent in Investment Treaty Arbitration

2018 ◽  
Author(s):  
Paulsson Jan
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Common Law ◽  
Legal Systems ◽  
Investment Protection ◽  
Investment Treaty ◽  
The Common ◽  
Technical Rules ◽  
Investment Treaty Arbitration

This chapter examines the role of precedent in investment treaty arbitration. The technical rules of precedent are practice rules developed within legal systems. A system that enforces the rule of precedent requires a supreme court authorised both to impose a rule on inferior courts and to modify it when it sees fit. However, there is nothing like it in the international realm, and even less so in the context of arbitration. Nonetheless, it is possible to imagine the development of an international ‘law on investment protection’ by something akin to the common-law process of developing authoritative rules by case-by-case accretion, though this type of precedent must be qualified by the word ‘persuasive’ rather than ‘binding’.

1 The Investment Treaty Regime in Context

2017 ◽  
Author(s):  
Bonnitcha Jonathan ◽  
Skovgaard Poulsen Lauge N ◽  
Waibel Michael
Keyword(s):  
Developing Countries ◽  
International Law ◽  
Global Network ◽  
Investment Treaty ◽  
Regime Complex ◽  
Wide Range ◽  
Investment Treaties ◽  
Main Components ◽  
Investment Treaty Arbitration

This chapter charts the rise of the global network of more than 3000 investment treaties and of investment treaty arbitration. Investors have used investment treaties to ask for compensation for a very wide range of government conduct. The chapter surveys the investment treaty regime and the investment regime complex. The regime consists of three main components: (i) investment treaties; (ii) the set of treaties, rules, and institutions governing investment treaty arbitration; and (iii) the decisions of arbitral tribunals applying and interpreting investment treaties. The growing role of investment treaty arbitration has made it highly controversial in both developed and developing countries, and has transformed the investment treaty regime from an obscure field of international law to a central part of the investment regime complex.

Revisiting the risk of undesired appeal in investment treaty arbitration: is deference to the tribunal’s award still less likely in the ICSID context?

2021 ◽  
Author(s):  
Alexander J Marcopoulos
Keyword(s):  
Ad Hoc ◽  
De Novo ◽  
Case Law ◽  
Court Decisions ◽  
Investment Treaty ◽  
Investment Treaty Arbitration ◽  
The Way

Abstract Although they are generally not subject to appeal the way court decisions typically are, investor-State arbitration awards can be reviewed—and potentially set aside—in a number of ways and on various bases. In this respect, investor-State arbitration under the auspices of ICSID is notable in that it provides a self-contained system for the review of arbitral awards by ICSID-appointed ad hoc committees. In the period 2000–2010, this feature of the ICSID system attracted criticism as ad hoc committees appeared to be overreaching in their review of arbitral awards, exercising less deference to the tribunal’s decisions than what would be expected given the narrow bases for setting aside an award under the ICSID Convention. This article revisits the issue 10 years later, exploring whether ICSID practice has evolved in these areas and whether there remains a greater risk of unexpected de novo review by ICSID ad hoc committees. Looking at recent ICSID annulment decisions as well as the case law of arbitration-friendly jurisdictions, the article concludes that although the ICSID ad hoc committees have recently shown more restraint, they continue to interfere more with the tribunal’s reasoning and decisions than many courts exercising the same function.

THE UNIDROIT PRINCIPLES OF INTERNATIONAL COMMERCIAL CONTRACTS AND INVESTMENT TREATY ARBITRATION: A LIMITED RELATIONSHIP

2015 ◽  
Vol 64 (4) ◽  
pp. 905-933
Author(s):  
Jarrod Hepburn
Keyword(s):  
International Law ◽  
Public Law ◽  
Private Law ◽  
Applicable Law ◽  
Investment Protection ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
General Principles Of Law ◽  
Domestic Law ◽  
Investment Treaty Arbitration

AbstractThe UNIDROIT Principles of International Commercial Contracts have appeared in a small but steady trickle of investment treaty arbitrations over the last decade. This article considers the use of the Principles by investment tribunals on questions of both domestic law and international law. It suggests that reference to the Principles can play an important legitimating role on questions of domestic law, but that this should not replace reference to the applicable law. On questions of international law, reference to the Principles may be justified by resort to the general principles of law. However, the article contends that there is only a limited role for the UNIDROIT Principles where the primary and secondary rules of investment protection are already found in treaties and custom. In addition, while general principles have historically been drawn from domestic private law, there is increasing recognition that general principles of public law are more relevant to investment arbitration. Given this, arbitrators resolving questions of international law must be cautious in references to the UNIDROIT Principles, a quintessentially private law instrument.

Part 2 National and Regional Reports, Part 2.1 Africa: Coordinated by Jan L Neels and Eesa A Fredericks, 16 Morocco: Moroccan Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Zaher Khalid
Keyword(s):  
Public Policy ◽  
International Law ◽  
Case Law ◽  
Vital Role ◽  
Private International Law ◽  
Statutory Law ◽  
The Hague ◽  
The Law

This chapter examines Moroccan perspectives on the Hague Principles. In Morocco, the sources of private international law applicable to international commercial contracts are both of a national and an international nature. International sources include mainly treaties and, to a lesser extent, international customs to which the Moroccan courts may refer in particular cases. National sources are statutory law, case law, and scholarly writings. Case law has always played a vital role in the development and the interpretation of the rules applicable to international commercial contracts. It is indeed the role of the courts to determine the scope of law chosen by the parties and to delimit the boundaries of international public policy as a limit to the application of the law chosen by the parties. Moroccan courts consider international customs as important sources in respect of international contracts and arbitration. Having frequently used the universally accepted principles of private international law, Moroccan courts could easily draw on the Hague Principles to find solutions to certain questions that have not been addressed by the legislature.

A New Era in Cross-strait Relations? A Post-sovereign Enquiry in Taiwan’s Investment Treaty System

2019 ◽  
pp. 290-310
Author(s):  
Horia Ciurtin
Keyword(s):  
International Law ◽  
Main Trend ◽  
The European Union ◽  
New Era ◽  
Investment Treaty ◽  
System P ◽  
International Economic Law ◽  
Starting Point ◽  
Eye Opening ◽  
Litmus Test

The author provides a post-sovereign enquiry in Taiwan’s investment treaty system. Going beyond the traditional legal divisions, Taiwan showed that it can bypass such limitations, being a main trend-setter in innovating the area of international economic law. Specifically, a close look at Taiwan’s nexus of investment treaty is eye-opening; Taiwan concluded twenty-nine BITs and six ample economic cooperation agreements with related investment provisions. The number and the importance of these agreements reveal that the concept of international recognition does not directly influence the behaviour of states which are willing to interact legally and economically. In this regard, non-diplomatic relations might be used as a step forward, as Taiwan is closer to conclude an agreement with another post-sovereign entity, the European Union. This global actor may open up the scene for a multi-tier dynamic where some of its component member states are in principle against any liaison with Taiwan, but will be bound to it because of their membership to the EU. To solve such legal contradiction, the established instruments of international law cannot be applied, and a new theoretical framework shall be developed. To this end, the starting point must be to discuss sovereignty thoroughly. The chapter assesses the polity’s effort for the development of diplomatic structures by means of investment agreements, in this way avoiding the problems related to recognition. This kind of agreement can be considered as a litmus test, showing Taiwan’s capacity to shift traditional categories of Westphalian international law and emerge as a self-standing actor.

Legal Pluralism and Reasonable Accommodation of Religious Diversity

2017 ◽  
Vol 24 (4) ◽  
pp. 467-483
Author(s):  
Dolores Morondo Taramundi
Keyword(s):  
International Law ◽  
Constitutional Law ◽  
Religious Diversity ◽  
Legal Pluralism ◽  
Case Law ◽  
Reasonable Accommodation ◽  
Private International Law ◽  
Public Discussion ◽  
Sharia Law

This article aims to address a number of distinct characteristics of the European debate on legal pluralism as a means for accommodating religious diversity and religious normative orders. In contrast with the us and Canada, where there is a long-standing and varied tradition in jurisprudence that underpins theoretical debates and proposals, European case law is characterised by the prominent role of private international law. Public discussion has also been highly influenced by the uk controversy surrounding the application of Sharia law in arbitration. This article explores how this background shapes the space for religious normative orders, their potential as a means of accommodating religious diversity and the reasons and challenges ahead in the move from private international law to constitutional law for pluralistic arrangements.

Part III Guide to Key Jurisdictional Issues, 17 Counterclaims in Investment Treaty Arbitration

2018 ◽  
Author(s):  
Clodfelter Mark A ◽  
Tsutieva Diana
Keyword(s):  
International Trade ◽  
United Nations ◽  
Case Law ◽  
The Core ◽  
Trade Law ◽  
International Trade Law ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Investment Law ◽  
Investment Treaty Arbitration

The last decade has seen an increase in the efforts of respondent States to have their own claims against investor-claimants heard in investor-State proceedings commenced against them. The investment arbitration case law has revealed a host of legal and practical difficulties in admitting counterclaims. Most of these stem from the core requirement that parties must consent to submit their differences to investment arbitration. The applicable arbitration rules have also been cited as a bar to counterclaims. This chapter explores the functionality of applicable procedural rules as bases for an investment tribunal’s authority to hear counterclaims under the two main investment law regimes: the International Centre for Settlement of Investment Dispute (ICSID) Convention and Arbitration Rules and the United Nations Commission on International Trade Law Arbitration Rules. A review of the milestone cases under these two regimes reveals the major problems that have arisen.

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